Texas Secession: The Forgotten Law That Could Allow It to Happen

How Texas Could Mess With Us

Lone Star secessionists could (theoretically) get their wish.

Texas Gov. Rick Perry speaks during his presidential primary run early in 2012.

Photo by Mark Wilson/Getty Images.

By last Friday, three days after the re-election of President Obama but before the final tally of electoral votes had been confirmed, a curious phenomenon was already taking place on the "We the People" website, which the Obama White House set up in 2011 as an easy way for Americans to petition the executive branch for the redress of grievances. Disgruntled individuals in various states—generously taking it upon themselves to speak for the rest of their states' populations—were announcing their desire to secede from the union and formally requesting permission from the federal government to do so.

As of Tuesday afternoon, petitioners in more than 30 states had expressed their keen interest in severing ties. According to "We the People," any petitions that earn 25,000 signatures within 30 days of their original posting will automatically receive an official response from the White House—which, if and when it comes, is almost certain to resemble the kind of "official response" routinely dispensed by immensely powerful corporations who feel compelled to acknowledge customer dissatisfaction, but who can afford not to offer any form of actual recompense. ("Thank you for your interest in seceding from the United States of America. We appreciate and share your concern about the fragile state of our union. Unfortunately, at this time ...")

It's unclear just how many of the state petitioners will be able to meet the signature threshold. But even if every one of them finds 24,999 like-minded souls to sign their names, one state will enjoy an advantage over the others. It will probably come as no surprise that the state in question is Texas, which has always prided itself on doing things its own way.

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My home state is an odds-on favorite to stick it to the federal man in a secession battle in part because it’s been spoiling for such a fight since Reconstruction. But it’s not just the state’s vaunted independent streak that gives it a leg up: Thanks to a strange quirk of its original annexation agreement, Texas may actually be in a slightly better position than any of the other 49 states to back up its tough-guy talk.

Just four days after a Texan known only as “Micah H” petitioned the U.S. government to allow his home state to secede peacefully, his petition had received more than three times the number of signatures necessary to merit an official reply from the White House. (Sympathetic signatories were jumping onto his bandwagon at the rate of about 2,000 per hour on Monday and Tuesday.) This remarkable outpouring of support—no other state has even come close to matching Texas' number of signatures—coupled with a statement made late last week by one Texas GOP official who likened Obama voters to "maggots" and called for an "amicable divorce" between Texas and the United States, prompted Texas Gov. Rick Perry to weigh in. In an e-mail to a Dallas Morning News reporter on Monday afternoon, the governor's press secretary affirmed for anyone who might be wondering that her boss "believes in the greatness of our Union and [that] nothing should be done to change it."

Those soothing words are a far cry from the ones Gov. Perry uttered back in 2009, at a Tea Party rally in Austin. Though he hadn't yet announced his candidacy for the GOP presidential nomination, Perry was already trafficking in the kind of bellicosely anti-Washington language that would earn him his brief moment as the GOP's front-runner, before he flamed out spectacularly during the primaries. At that rally, Perry answered a reporter's question about the notion of state sovereignty with all the menacing subtlety of a Lone Star loan shark. "We've got a great union," he said. "There's absolutely no reason to dissolve it. But if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that?"*

Right before he made that comment, Perry had told the same reporter that "when [Texas] came in the union in 1845, one of the issues was that we would be able to leave, if we decided to do that." To the extent that Texas' future right to secede from the United States may have been discussed, argued, and/or wished for upon the state's annexation, the governor was technically correct in saying that it was an "issue." But Perry's wording suggested that a right to secede was built, as some sort of term or condition, into the original joint resolution of Congress that brought the Republic of Texas into the union.

That simply isn't true. Texas' so-called "right" to secede is no more than a politically emboldening myth, the boastful residue of the decade it spent as a sovereign nation before joining America. There's simply nothing in the state's official annexation papers, or in any other contemporaneous documents for that matter, to suggest otherwise. Nevertheless, over the last century and half this myth has proven harder to kill than a mound of East Texas fire ants. As recently as 2009, the pollster Rasmussen Reports noted that nearly one-third of Texans believed their state could unilaterally split off from the U.S. if it chose to do so. In the state's 2008 Republican Senate primary, Larry Kilgore, a secessionist who openly had proclaimed his hatred for the federal government, received more than 18 percent of the vote—representing almost 250,000 ballots cast—in his race against the incumbent, John Cornyn.

But while it may not enjoy any such right, Texas can legitimately claim to be holding an unusual ace up its sleeve, which—should it ever be played—could end up altering the face of the U.S. map even more significantly than secession would. And were it to be played deftly, that ace could even set the stage for the very secession scenario that Micah H. and his separatist compatriots so passionately envision.

A few years ago, while conducting research for a novel I was writing about Lone Star politics, I discovered a short clause in the state's 1845 annexation agreement that's well known to any serious state historian, though far less well known to the average Texan. Buried beneath some highly boring details about how the republic's resources were to be transferred to the federal government in Washington is language stipulating that "[n]ew States, of convenient size, not exceeding four in number, in addition to said State of Texas, and having sufficient population, may hereafter, by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the federal constitution."

Put plainly, Texas agreed to join the union in 1845 on the condition that it be allowed to split itself into as many as five separate states whenever it wanted to, and contingent only on the approval of its own state legislature. For more than 150 years, this right to divide—unilaterally, which is to say without the approval of the U.S. Congress—has been packed away in the state's legislative attic, like a forgotten family heirloom that only gets dusted off every now and then by some politician who has mistaken it for a beautiful beacon of hope.

In 1930, a few years before he muscled his way into the White House as Franklin Roosevelt's first vice president, House Minority Leader John Nance Garner led a crusade to divide the one state he represented into five, along regional lines. Together with their progenitor, the new states of North Texas, South Texas, East Texas and West Texas would, in Garner's words, "transfer the balance of political power from New England to the South and secure for the Southern States ... prestige and recognition." At a time when Texas was solidly Democratic, the threat of eight new Democratic senators in Washington would also, in his view, have the added benefit of chipping away significantly at the Republican majority's power.

Garner's plan died on the vine, as have all other attempts since then to split the state (including the one in 1969 proposed by state senator and San Antonio gambling kingpin V.E. "Red" Berry, who dreamed of creating within Texas a 51st state that would be a paradise of parimutuel betting). Still, despite these notable failures, the division clause remains on the books. Its legality has been discounted by some and defended by others, but the issue has never been put to rest in any authoritative, legally binding way. (Snopes.com is uncharacteristically wishy-washy on the matter; newly minted liberal demi-god Nate Silver, hardly the gullible sort, seems far more credulous.) Until that day comes, dreamers and dissidents will continue to view it as a sneaky way to ensure Texas' political supremacy in this era of the closely divided Senate and the opportunistically wielded filibuster.

Could the current crop of Texas secessionists use the division clause in pursuit of their separatist goals? It would certainly be worth a shot. Naturally, it took the Machiavellian political mind of Texan Tom DeLay—the former House majority leader, currently out on bail while appealing a 2011 money-laundering conviction—to put the pieces of a tenable scheme together. The day after Perry blew his secessionist dog whistle to that reporter back in 2009, DeLay went on MSNBC's Hardball to cheerfully defend his governor's remarks. When host Chris Matthews insisted (correctly) that unilateral secession was illegal and couldn't take place, DeLay stopped his maniacal grinning for a moment and cited the division clause.

In a sign of just how much the two political parties' fortunes have shifted in Texas since the days when John Nance Garner represented the state in Congress, DeLay intimated that the threat of sending eight newly minted, and almost certainly Republican, senators to Washington might be the key to getting this whole secession ball rolling. Referring directly to the language of the joint resolution, he said, "If we invoke it, the United States Senate would kick us out ... because they're not going to allow 10 (sic) new Texas senators into the Senate. That's how you secede."

Is it a nutty idea? Sure. An un-American idea? Definitely. But for yesterday's flag-waving patriots, a sizable number of whom have suddenly found themselves transformed into America-bashing cynics, it must seem like an idea whose time has finally, if sadly, come.

Correction, Nov. 15, 2012: This article originally included a paraphrase of Rick Perry's quote, which read, "Nice country you got there. Be a real shame if something happened to it." That line closely resembles one from a 2009 New Yorker article by Hendrik Hertzberg about Texas' secession movement, which paraphrased the same quotation from Gov. Rick Perry. Hertzberg's line read: "Nice little Union you got there. Be a shame if anything happened to it." The author contends the echo was unintentional, but given the context, the article should have avoided the line or cited Hertzberg's article. (Return to the revised paragraph.)

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